After about six years of pendency, the Supreme Court on Wednesday refused to answer politicans Amar Singh and Jaya Prada's queries whether a lawmaker expelled by a political party can be tried for anti-defection law for defying a party whip even after their expulsion.
A Bench of Justices Ranjan Gogoi, Arun Mishra and P.C. Pant, after long hours of hearing arguments and reservation of judgment, decided that the questions were not worth their attention as both Mr. Singh and Ms. Jaya Prada are no longer Rajya Sabha members.
"The petitioners MPs of Rajya Sabha have completed their tenure. Though we heard the matter at length we find it more appropriate not to answer the questions put to us," Justice Gogoi dictated in a short order.
The question of law posed by the politicians was found to be relevant in modern times by a two-judge Bench of the Supreme Court led by Justice Altamas Kabir in November 2010.
The Supreme Court's refusal to answer the questions may impact lawmakers expelled by their political party such as expelled AIADMK MP Sasikala Pushpa. She can be tried under anti-defection law even now in case she defies a party whip. The reference to a larger Bench by the Supreme Court had even sought clarity on the status of MPs who remain unattached after expulsion.
A reference by the Supreme Court to a larger Bench is not dependent on the circumstances or the present situation of the petitioners, in this case Mr. Singh and Ms. Jaya Prada, but is meant to interpret the law and lay down a judicial precedent.
Both Mr. Singh and Ms. Jaya Prada had sought interim stay on any possible action against them in case they decided to vote in favour of the Women’s Reservation Bill to which the Samajwadi Party is fiercely opposed to.
On November 10, the apex court decided to make the reference after then Attorney General G.E. Vahanvati agreed that the issue needs to be settled by a larger bench as the apex court’s earlier judgment in the Vishwanathan case was not clear on certain aspects of the anti-defection law.
It took the decision after hearing in detail Mr. Vahanvati, and senior counsel Harish Salve and K.K. Venugopal, appearing for Mr. Singh and Ms. Jaya Prada.
The two leaders had contended that they have landed in a piquant situation. They said that as expelled members, they apprehend disqualification under the anti-defection law if they choose to defy the party’s whip on any issue in Parliament.
Counsel for the two politicians had argued that the anti-defection law could be evoked only against those who either defect from the party or defy its whip while being in the party.
But, in their case, they contended, the MPs did not defected from the party but were expelled, and as unattached members, they were not amenable to the party’s whip.
Earlier, the apex court had sought the Attorney General’s opinion on the plea of Mr. Singh and Ms. Jaya Prada that they should not be disqualified as Members of Parliament after their expulsion from the Samajwadi Party.
The two sacked MPs had moved the apex court fearing they may be disqualified for not abiding by the party whip in Parliament in view of the apex court verdict in a case in 1996.
As per the interpretation of the anti-defection law by the Supreme Court in 1996, a member elected or nominated by a political party continues to be under its control even after his or her expulsion.
They felt the apex court’s interpretation of the Tenth Schedule of the Constitution impinged upon fundamental rights of the expelled members, including their rights to equality, free speech and expression and life under articles 14, 19 and 21 respectively.
Both the leaders were suspended from the SP on February 2 for alleged anti-party activities.
They had pleaded before the Supreme Court that the provisions of the Tenth Schedule, which deals with disqualification of MPs, are not applicable to the expelled members of a political party.
Challenging the apex court’s 1996 verdict in G. Vishwanathan case, the leaders contended that the court had erroneously interpreted the Tenth Schedule, while holding that its provisions apply even to the expelled members if they join a new political party.
They had submitted that the Viswanathan case ruling had also led to an anomalous situation where a party makes its expelled member abide by its whip even after expelling him from the party and the failure to adhere to such whip results in disqualification of the expelled member from the House.
In their petition, they submitted the ruling in the Viswanathan case render them ineligible from both joining or forming a new political party due to the fear of disqualification under Clause 2(1)(a) of the anti-defection law.
Six pertinent questions on anti-defection law troubling Indian politics that the Supreme Court refused to clarify on:
| 1 | What is the status in either House or Parliament or the State Legislature of a Member who is expelled from the party which set him/her up as a candidate for election? |
| 2 | Will the provisions of the Tenth Schedule apply to such Member? |
| 3 | Was the view taken by the Supreme Court in G. Viswanthan’s case in harmony with the provisions of Tenth Schedule? |
| 4 | Since expelled members are not referred in Tenth Schedule, was the decision in Viswanathan’s case a correct interpretation, viz that the Members continue to belong to such a party which had set them up as candidates in the election? |
| 5 | Can it be said that when a Member of either House of Parliament is expelled joins another political party or forms his own party, that he had voluntarily given up his membership of the party? |
| 6 | What is the status of unattached member in either House of Parliament? |
